Exhibit 10.6(b)


 


SOUTH
CAROLINA BANK AND TRUST


 


RESTATED
ESCROW AGREEMENT


 


Relating
to Subscriptions for Shares of  Coastal
Carolina Bancshares, Inc.


 


This Restated Escrow Agreement (the “Restated Agreement”)
is made and entered into as of the       th day of
                      ,
2008, by and between Coastal Carolina Bancshares, Inc., a South Carolina corporation  (the “Company”), South Carolina Bank and Trust (the “Escrow
Agent”), and Commerce Street Capital, LLC (the “Agent”).


 


WHEREAS, the Company proposes to offer and sell (the “Offering”)
up to 3,000,000 shares of Common Stock, $0.01 par value per share (the “Shares”),
to investors at $10.00 per Share pursuant to a public offering registered
pursuant to the Securities Act of 1933;


 


WHEREAS, the Company and the Escrow Agent previously
entered into an Escrow Agreement dated June 6, 2008 (the “Original
Agreement”);


 


WHEREAS, since the date of the Original Agreement, the
Company has entered into an Agency Agreement dated                       ,
2008, with the Agent under which the Agent has been engaged to act as sales
agent and assist in the sale of the Shares on a “best efforts” basis; and


 


WHEREAS, as a result, it is desired that the Agent become a
party to the escrow arrangement for subscription funds received in the
Offering, and the Company, the Escrow Agent and the Agent desire to modify and
restate the Original Agreement by entering into this Restated Agreement.


 


NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:


 


1.              ESCROW
DEPOSIT.


 


a.                  Each investor
will deliver the funds in payment for the Shares purchased by such investor, as
set forth in the Subscription Agreement, to the Company for further delivery to
the Escrow Agent.  The Company will
collect and deliver to the Escrow Agent appropriate IRS W-9 Forms for each
investor.  Checks should be made payable
to “South Carolina Bank and Trust, as Escrow Agent for Coastal Carolina
Bancshares, Inc.” and sent to the Escrow Agent promptly.  If any check does not clear normal banking
channels in due course, the Escrow Agent will promptly notify the Company.  Any check which does not clear normal banking
channels and is returned by the drawer’s bank to Escrow Agent will be promptly
turned over to the Company along with all other subscription documents relating
to such check.  Any check received that
is made payable to a party other than the Escrow Agent shall be returned to the
Company for return to the proper party. 
The Company in its sole and absolute discretion may reject any
subscription for Shares in whole or in part for any reason and upon such
rejection, it shall notify and instruct the Escrow Agent in writing to return
the appropriate amount of Escrowed Funds by check made payable to the
investor.  If the Company rejects or
cancels any subscription for any reason, the Company will retain any interest
earned on the Escrowed Funds to help defray organizational costs.


 


b.                  Subscription
Agreements for the Shares shall be promptly reviewed for accuracy by the
Company and, immediately thereafter, the Company shall promptly deliver to the
Escrow 


 


1

















 


Agent
the following information: (i) the name and address of the investor; (ii) the
number of Shares subscribed for by such investor; (iii) the subscription
price paid by such investor; (iv) the investor’s tax identification number
certified by such investor; and (v) a copy of the investor’s Subscription
Agreement.


 


2.              INVESTMENT
OF ESCROW DEPOSIT.  All funds
received by the Escrow Agent pursuant to this Restated Agreement shall be
invested in compliance with applicable laws, rules and regulations,
including Rule 15(c)(2-4) under the Securities Exchange Act of 1934 and
applicable requirements of regulatory agencies. 
To the extent permissible thereunder, such funds may be invested in
deposit accounts or certificates of deposit which are insured by the Federal
Deposit Insurance Corporation or another agency of the United States
government, short-term securities issued or fully guaranteed by the United
States government, federal funds, or such other investments as the Escrow Agent
and the Company shall agree, provided such investments may be liquidated
without penalty within one business day. 
The Company shall provide the Escrow Agent with instructions from time
to time concerning in which of the specific investment instruments described
above the Escrowed Funds shall be invested, and the Escrow Agent shall adhere
to such instructions.  Unless and until
otherwise instructed by the Company, the Escrow Agent shall invest the Escrowed
Funds in an interest bearing account that complies with such laws, rules,
regulations and requirements.  Interest
will begin accruing no later than the next business day after receipt.  Incoming wire transfers received by 6:00 P.M.
(ET) will be posted as soon as feasible. 
Incoming wire transfers received without a Subscription Agreement will
be posted, but returned after five business days if a Subscription Agreement
has not been received by the Company. Interest and other earnings shall start
accruing on such funds as soon as such funds would be deemed to be available
for access under applicable banking laws and pursuant to the Escrow Agent’s own
banking policies.


 


3.              CERTIFICATION
OF FUNDS.  Upon receipt
of (i) funds in the amount of at least $21 million in payment for Shares, less
the amount certified by the Company to have been received by it as
subscriptions from organizers, founders and executive officers (which do not
have to be held in escrow as of the date of such certification) and (ii) at
the direction of Company, the Escrow Agent shall certify to the appropriate
regulatory authorities that the Escrow Agent holds a minimum of $21 million less
the amount certified by the Company to have been received by it as subscriptions
from organizers, founders and executive officers (which do not have to be held
in escrow as of the date of such certification) on deposit in the escrow
account for the purchase of Shares in Company.


 


4.              DISTRIBUTION
OF FUNDS.  The Escrow
Agent shall distribute the funds held by it under this Restated Agreement as
follows:


 


a.                  Upon receipt of
(i) funds in the amount of at least $21 million in payment for Shares, (ii) 
receipt of a certificate from the Agent that all of the conditions set forth in
the Agency Agreement between the Company and the Agent have been satisfied or
otherwise waived, and (iii) a certificate executed by the Company’s CEO or
CFO attesting that all other conditions to the release of funds as described in
the Company’s prospectus pertaining to the offering, including but not limited
to approval of the appropriate bank regulators, have been met and directing the
Escrow Agent to distribute all funds then held by the Escrow Agent pursuant to this
Restated Agreement to the Company, then the Escrow Agent shall deliver the
funds, by cashier’s check, wire transfer, or other form of payment mutually
acceptable to the Company and the Escrow Agent, to the Company, together with
the income earned thereon pursuant to subsection (c) of this Section 4.  The parties anticipate that there may be
multiple distributions of escrowed funds and that both the Agent and the
Company will deliver a certificate as contemplated above prior to each such
distribution.  No distribution will be
made until the last investor deposit to be distributed in that distribution has
been made for at least two business days. 
The Company shall provide account information and other necessary
directions for disbursements by the Escrow Agent to it under this Restated Agreement.  The Escrow Agent was provided a copy of the
form of Subscription Agreement at the signing of the Original Agreement.


 


2

















 


b.               Upon (i) receipt of
direction from the Company, to return the funds to the investors; or (ii) in
the event the Escrow Agent shall have received less than $21 million or shall
have received no direction or certificate from the Company pursuant to either
subsection (a) or this subsection (b) of this Section 4 on or prior
to initial closing date of  the Offering
as described in the Company’s prospectus (unless the Company notifies the
Escrow Agent that the Offering has been extended), the Escrow Agent shall
distribute such funds to the investors, without interest, pursuant to
subsection (c) of this Section 4. 
The Company may give notice to the Escrow Agent that the Company is
canceling its offer of the Shares prior to the ultimate expiration date of the
Offering as described in the Company’s prospectus (beyond such date the
Offering may not be extended by the Company), and the Escrow Agent shall
distribute the funds to the investors in accordance with this Restated Agreement.


 


c.               Any income earned on the
investment of funds received under this Restated Agreement will first be
applied against the Escrow Agent’s fee set forth in Section 9 hereof and
any expense of the Escrow Agent incurred pursuant to Section 6 hereof,
provided that in no event shall the Escrow Agent apply any of the investors’
original investment principal towards such fees and expenses.  To the extent that such income exceeds the
Escrow Agent’s fee and expenses, the Escrow Agent shall distribute such excess
to the Company, in the event that funds are returned to investors pursuant to
subsection (b) of this Section. 
Such excess shall also be delivered to the Company, in the event that
the funds received and held hereunder are delivered to the Company pursuant to
subsection (a) of this Section.  To
the extent that the income earned on the investment of funds does not exceed
the Escrow Agent’s fees and expenses, the Company shall promptly pay the Escrow
Agent the amount by which the Escrow Agent’s fees and expenses exceed the
income.


 


5.              AUTHORIZATION
FOR DISBURSEMENT.  The Escrow
Agent is hereby authorized and directed to issue its checks for each
disbursement hereunder and the Escrow Agent shall be relieved of all liability
with respect to making the disbursements in accordance with the provisions
hereof.


 


6.              PROFESSIONAL
SERVICES USED BY ESCROW AGENT.  The Escrow
Agent may engage the services of such attorneys, accountants, and other
professionals, as the Escrow Agent may, in its sole discretion, deem advisable
to carry out its duties under the Restated Agreement.  The Company agrees to reimburse the Escrow
Agent for all costs, expenses and professional fees incurred hereunder which
are not covered by income earned on escrowed funds pursuant to Section 4(c)
hereof, including all legal fees and expenses incurred in the review of this Restated
Agreement.


 


7.              LIABILITY
OF ESCROW AGENT.


 


a.                  In performing any of its duties under the Restated Agreement, or upon the
claimed failure to perform its duties hereunder, the Escrow Agent shall not be
liable to anyone for any damages, losses or expenses which it may incur as a
result of the Escrow Agent so acting, or failing to act; provided, however, the
Escrow Agent shall be liable for damages arising out of its willful default or
misconduct or its gross negligence under this Restated Agreement.  Accordingly, the Escrow Agent shall not incur
any such liability with respect to (i) any action taken or omitted to be
taken in good faith upon advice of its counsel or counsel for the Company which
is given with respect to any questions relating to the duties and
responsibilities of the Escrow Agent hereunder; or (ii) any action taken
or omitted to be taken in reliance upon any document, including any written
notice or instructions provided for in this Restated Agreement, not only as to
its due execution and to the validity and effectiveness of its provisions but
also as to the truth and accuracy of any information contained therein, if the
Escrow Agent shall in good faith believe such document to be genuine, to have
been signed or presented by a proper person or persons, and to conform with the
provisions of this Restated Agreement.


 


3

















 


b.                  The Company agrees to indemnify and hold harmless the Escrow Agent
against any and all losses, claims, damages, liabilities and expenses,
including, without limitation, reasonable costs of investigation and counsel
fees and disbursements which may be imposed by the Escrow Agent or incurred by
it in connection with its acceptance of this appointment as Escrow Agent
hereunder or the performance of its duties hereunder, including, without
limitation, any litigation arising from this Restated Agreement or involving
the subject matter thereof; except, that if the Escrow Agent shall be found
guilty of willful default, misconduct or gross negligence under this Restated Agreement,
then, in that event, the Escrow Agent shall bear all such losses, claims,
damages and expenses.


 


c.                  If a dispute ensues between any of the parties hereto which, in the
opinion of the Escrow Agent, is sufficient to justify its doing so, the Escrow
Agent shall retain legal counsel of its choice as it reasonably may deem
necessary to advise it concerning its obligations hereunder and to represent it
in any litigation to which it may be a party by reason of this Restated Agreement.  The Escrow Agent shall be entitled to tender
into the registry or custody of any court of competent jurisdiction all money
or property in its hands under the terms of this Restated Agreement, and to
file such legal proceedings as it deems appropriate, and shall thereupon be
discharged from all further duties under this Restated Agreement.  Any such legal action may be brought in any
such court as the Escrow Agent shall determine to have jurisdiction
thereof.  In connection with such
dispute, the Company shall indemnify the Escrow Agent against its court costs
and reasonable attorney’s fees incurred.


 


8.              RESIGNATION.  The Escrow Agent may resign at any time upon
fifteen days’ written notice to the Company. 
Such resignation shall take effect upon receipt by the Escrow Agent of
an instrument of acceptance executed by a successor escrow agent and subscribed
and consented to by the Company, and the delivery by the Escrow Agent to such
successor of any funds held under this Restated Agreement.  The Escrow Agent, if it has not received such
an instrument of acceptance prior to the expiration of fifteen calendar days
after the giving of notice of resignation, shall be discharged of its duties
and obligations hereunder only upon the deposit of any funds being held by it
under this Restated Agreement into, and the acceptance thereof, by a court of
competent jurisdiction, to which application shall be made for the appointment
of a successor escrow agent and such successor agent so appointed shall succeed
to all of the rights, duties and responsibilities of the Escrow Agent
hereunder.


 


9.              ESCROW
AGENT’S FEES.   There will be no fees charged by the Escrow
Agent for the administration and execution of this Restated Agreement.


 


10.       NOTICE.  All notices, certificates, requests, demands
and other communications or deliveries hereunder shall be in writing and shall
be sufficiently given and shall be deemed given when delivered, postage
prepaid, addressed as follows by Certified Mail (or other means, if unanimously
agreed to by the parties in writing):


 


	
   

  	
  To the Escrow Agent:

  	
  Attention: Alex Shuford

  
	
   

  	
   

  	
  South
  Carolina Bank and Trust

  
	
   

  	
   

  	
  Post
  Office Box 1030

  
	
   

  	
   

  	
  Columbia,
  SC 29202

  
	
   

  	
   

  	
   

  
	
   

  	
  To
  the Investors:

  	
  To
  the persons named and at the Addresses listed in the Subscription Agreements

  
	
   

  	
   

  	
   

  
	
   

  	
  To
  Company:

  	
  Attention:
  Holly L. Schreiber, CFO

  
	
   

  	
   

  	
  Coastal
  Carolina Bancshares, Inc.

  
	
   

  	
   

  	
  Post
  Office Box 2969

  
	
   

  	
   

  	
  Myrtle
  Beach, SC 29578

  



 


 


4

















 


	
   

  	
  To
  Agent:

  	
  Attention:
  Charles W. Ingram

  
	
   

  	
   

  	
  Commerce
  Street Capital, LLC

  
	
   

  	
   

  	
  1700
  Pacific Avenue

  
	
   

  	
   

  	
  Suite 2020

  
	
   

  	
   

  	
  Dallas,
  Texas 75201

  



 


Any
party may, by notice given hereunder, designate any future or different
addresses to which subsequent notices, certificates, and other communications
shall be sent.


 


11.       REPRESENTATIONS OF THE COMPANY.  The Company hereby acknowledges that the
status of the Escrow Agent with respect to the offering of the Shares is that
of agent only for the limited purposes herein set forth, and hereby agrees it
will not represent or imply that the Escrow Agent, by serving as the Escrow
Agent hereunder or otherwise, has investigated the desirability or advisability
of an investment in the Shares, or has approved, endorsed or passed upon the
merits of the Shares, nor shall the Company use the name of the Escrow Agent in
any manner whatsoever in connection with the offer or sale of the Shares, other
than in the Company’s registration statement and related prospectus by acknowledgment
that the Escrow Agent has agreed to serve as Escrow Agent for the limited
purposes herein set forth.


 


12.       ENTIRE AGREEMENT.  This Restated Agreement sets forth the entire
agreement and understanding of the parties with regard to the escrow transaction
and supersedes all prior agreements, arrangements and understandings relating
to the subject matter hereof.


 


13.       AMENDMENT.  This Restated Agreement may be amended,
modified, superseded or canceled, and any of the terms or conditions hereof may
be waived, only by a written instrument executed by each party hereto or, in
the case of a waiver, by the party waiving compliance.  The failure of any party at any time or times
to require performance of any provision hereof shall in no manner affect the
right at a later time to enforce the same. 
No waiver in any one or more instances by any party of any condition, or
of the breach of any term contained in this Restated Agreement, whether by
conduct or otherwise, shall be deemed to be, or construed as, a further or
continuing waiver of any such condition or breach, or a waiver of any other
condition or of the breach of any other terms of this Restated Agreement.


 


14.       BINDING
EFFECT.  This Restated Agreement
shall inure to the benefit of and shall be binding upon the parties hereto and
their respective heirs, executors, successors, administrators and assigns.  The Escrow Agent shall be bound only by the
terms of this Restated Agreement and shall not be bound by or incur any
liability with respect to any other agreement or understanding between the
parties with respect to the subject matter hereof except as herein expressly
provided herein.  The Escrow Agent shall
not have any duties hereunder except those specifically set forth herein.


 


15.       ASSIGNMENT.  No interest of any party to this Restated Agreement
shall be assignable in the absence of a written agreement by and between the
parties to this Restated Agreement, executed with the same formalities as this
original Restated Agreement.


 


16.       SEVERABILITY.  In the event any court of competent
jurisdiction shall hold any provision of this Restated Agreement invalid or
unenforceable, such holding shall not invalidate or render unenforceable any
other provision hereof.


 


17.       EXECUTION
OF COUNTERPARTS.  This Restated Agreement
may be executed in several counterparts, each of which shall be an original,
and all of which shall constitute one and the same instrument.


 


5

















 


18.       APPLICABLE
LAW.  This Restated Agreement
shall be construed and governed exclusively by the laws of the State of South
Carolina, without regard to its principles of conflicts of law.


 


19.       HEADINGS.  The headings used in this Restated
Agreement have been prepared for the convenience of reference only and shall not
control, affect the meaning of, or be taken as an interpretation of any
provisions of this Restated Agreement.


 


[Signatures on following
page]


 


6





















 


IN WITNESS WHEREOF, the parties
have duly executed this Restated Agreement as of the date first written above.


 


 


	
   

  	
  ESCROW AGENT:  SOUTH CAROLINA BANK AND 

  TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  Alex Shuford, Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  	
  COASTAL CAROLINA BANCSHARES, 

  
	
   

  	
  INC

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  Holly L. Schreiber, Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT:

  	
  COMMERCE STREET CAPITAL, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  Charles W. Ingram, Senior Vice President

  
				



 


7